During our State Unit Meetings in September, we told the attendees that the Wage and Hour division had stopped their regional targeting program for gins. Instead the Atlanta region which covers most of the SE has a general emphasis program on agriculture. At that time, we weren’t sure if that would add pressure to gins or take some off. Well we’re getting a better picture.
In recent weeks a number of gins in NC and GA have gotten notices and begun the Wage and Hour investigation process. The process is similar to any other Department of Labor investigation like OSHA. There is an opening conference, request for information, interviews, inspections and a closing conference.
Fisher and Phillips wrote a great article on how to handle these investigations. This article is HERE.
If you’re wondering what they’re looking for, I was recently on a call with the National Council of Ag Employers where Whitney Ford of the Wage and Hour division outlined a number of issues they are focusing on this year in Agriculture. A lot of these issues deal with Farm Labor Contractors. First is the issue of Joint Employership. If the farmer and the Farm Labor Contractor have joint control over the workers, then the farmer can be in a joint employment situation and be held accountable for the sins of the FLC. This can happen in H-2A situations also when the FLC is using H-2A Labor. Also dealing with FLC’s when an FLC has certain violations, they are debarred from the program. They often show back up with a new name or a family member as the licensed FLC. This becomes a game of whack-a-mole AND when combined with the joint-employer situation may put a farmer (or ginner) who uses an FLC in a bad predicament.
She also mentioned what is known as “corresponding employment” for the H-2A employers where US workers have to be offered the same or better conditions of employment than the H-2A workers. The argument is that if the better working conditions and pay were given offered to domestic workers, they would have applied for the jobs. The same thing goes for hours on the H-2A contract. Often there is a wide discrepancy between the hours on the contract and the hours worked. For example if the H-2A contract is for 40-50 hours and the work is really 60-80+ then domestic workers may have also applied knowing they would have made more money. (no I don’t make these arguments up)
Ms. Ford also discussed inbound transportation cost reimbursement, housing issues, inspections on housing conditions and much more.
If you have had an inspection this year and have not let us know about it, please shoot me an email at dusty at southern-southeastern.org so we can track this better. For example in NC Wage and Hour hit a lot of sweet potato producers and then moved to gins with at least six gins that we know of getting investigated so far.